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A Founding Paleocon

Luther Martin was what today we would describe as a "paleoconservative," a lover of tradition, prescription, and local control.

By From the March 2010 issue

Forgotten Founder, Drunken Prophet: The Life of Luther Martin
By Bill Kauffman
(ISI Books, 166 pages, $25)

Lost in the mists of our historical mythology is the fact that America's Constitution was not always the "sacred text" it has come to be considered. Indeed, among America's Founding Fathers there were many who had deep reservations about the Federalist conception of government developed between the opening of the Constitutional Convention in 1787 and the adoption of the Bill of Rights in 1791.

The principal fear of the anti-Federalists, as they were called, was that the rights of the individual states would be usurped by the central government. It has taken almost 220 years for their fear to be fully realized, but the surreptitious nationalism which they saw embedded in the Constitution's text has largely become a reality. Consider our all-powerful federal judiciary or the repeated (sometimes practically indiscriminate) use of a standing military. And of course, we recently witnessed the partial nationalization of our banking system, not to mention the election of a president with strong redistributionist impulses.

Scholars of a strict-constructionist frame of mind might argue that the centralization of power that makes such things possible has occurred in defiance of the Constitution's carefully crafted limits. But if the anti-Federalists were here to witness what has taken place, they would say, "Quite the contrary, the seeds of these excesses were right there in the document from the very beginning."

Wall Street Journal writer Bill Kauffman chronicles the life and career of one of the leading anti-Federalists in Forgotten Founder, Drunken Prophet: The Life of Luther Martin. Perhaps the foremost advocate of "states' rights" and the personal freedoms they were intended to ensure, Luther Martin was a true Founding Father -- though far from a model of the sobriety and rectitude usually ascribed to those men whose profiles grace our stamps, coins, and paper currency. Contemporaries spoke of him as "perpetually in his cups, coarse and gross, pedantic and long-winded, sedulous and acidulous."

They also saw him as "convincing" in his forceful arguments against the proposed Constitution. In September 1789, two weeks after leaving the Convention in Philadelphia for the last time, Martin charged that the new Constitution was:

...neither wholly federal, nor wholly national -- but a strange hotch-potch of both -- just so much federal in appearance as to give its opportunity of passing it as such upon the unsuspecting multitude, before they had time and opportunity to examine it, and yet so predominantly national as to put it in the power of its movers, whenever the machine shall be set agoing to strike out every part that has the appearance of being federal, and to render it wholly and entirely a national government.

Martin was what today we would describe as a "paleoconservative," a lover of tradition, prescription, and local control. Throughout the book, Kauffman draws on Martin's political philosophy to demonstrate how developments in American history contradicted the "states' rights" orthodoxy for which, conservatives would maintain, the American Revolution was fought. Kauffman lays this trans-mogrification of the American idea at the feet of Alexander Hamilton and James Madison, and he doesn't mask his feelings about these two "arch-nationalists." Of Hamilton he laments, "Burr should have killed [him] sooner." He charges that Madison, usually lionized as the father of the Constitution, actually desired "the total abolition and destruction of state governments."

Kauffman notes that Martin's reservations were not assuaged by the Bill of Rights, ostensibly added to the Constitution as a safeguard against encroachments of federal government power and intended
to reassure the anti-Federalists. The subsequent gravitation of power to Washington, D.C., has shown Martin to have been prophetic -- especially passage of the 14th Amendment, in 1868, which became the standard by which the federal government could measure whether the states were in compliance with the very Bill of Rights intended to guarantee their sovereignty.

One of Maryland's representatives to the Constitutional Convention, Luther Martin was described as "the bitterest of states' righter" at the Philadelphia gathering. He favored "only a modest confederation -- not beneath notice from God who governs, surely, but not in need of any strenuous cornerstone -- laying either. The structure -- the Articles [of Confederation (1781-88)] -- was already there." He believed that the Constitution put in jeopardy the local control which Alexis de Tocqueville would later praise in his famous survey of American life, Democracy in America (1835). No better example, Kauffman says, is the loss of state power over their militias or national guard, which were now subject to fight the "Empire's wars."

Martin was an attorney who played significant roles in two other pivotal events of American history -- both legal cases -- in which he proved himself to be a strict constructionist regarding constitutional interpretation (the first of which he won and the other he lost). It was alleged that former vice president Aaron Burr had attempted to establish an empire that would detach some
of the southern states and western territories from the United States. As part of Burr's defense team
in United States v. Burr (1807), Martin proved that, according to the constitutional standard, as defined by Chief Justice John Marshall (that the accused "truly and in fact levy war against the United States"), Burr had not committed treason. After the acquittal, one biographer called Martin "the spearhead of Burr's forensic army. The vituperative bludgeoner, the tickler of groundling."

In the other notable case, McCulloch v. Maryland (1819), Martin argued that the state of Maryland
had the right to tax the national bank established by President James Madison in 1816 (interestingly,
this case, like Burr's, was argued before Marshall). Martin based his "states' rights" argument on the 10th Amendment, which reads "the powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States representatively, or to the people." Marshall's prevailing decision held that the federal government "is the government of all; its powers are delegated
by all; it represents all, and acts for all." Therefore, creating a national bank was within its powers, and "so was proscribing state taxation thereof."

Kauffman sees that ruling as a defining moment in American constitutional history when "the defeat of the states was total, complete, shattering. Nationalism had triumphed." And his telling of the story is typical of his approach throughout the book. Kauffman is fascinated with the great "ifs" of the American saga. What if the Articles of Confederation had survived with only the tweaking which the anti-Federalists had hoped for? Would Americans have been better off? Would we be freer? We might have been spared the Civil War, perhaps even the two great world wars, as well as Korea, Vietnam, and even Iraq. On the other hand, how much longer would slavery have perdured in the South? Would Hitler and Tojo have conquered Europe and Asia? Would we resemble the republics of Central and South America, in constant political turmoil, with some states mired in great and unrelieved poverty?

Kauffman gives us a lot to think about, all presented in a historically thoughtful and entertaining way. Certainly Martin's jeremiads against the Constitution are still relevant, as evident in recent political developments and the anxieties surrounding the Democrats' policies and the ambitions of
the Obama administration -- all intended to extend federal power in a way that would signal the end
of "states' rights" as an American constitutional principle.

No doubt, Luther Martin would find in such prospects a thorough vindication of his fears about Federalism and, drinker that he was, cause for "a good stiff one."

I've often felt tempted to join him.

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About the Author

Rev. Michael P. Orsi is a chaplain and research fellow in law and religion at the Ave Maria School of Law in Naples, Florida.